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5 Legal Concerns for Communications Professionals

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Michael Crane
Michael Crane

Some of the legal concerns PR and communications professionals (and anyone else who communicates for a living) should think about. THIS SLIDESHARE IS NOT LEGAL ADVICE; ALWAYS CONSULT AN ATTORNEY IF YOU HAVE SPECIFIC QUESTIONS.

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Disclaimer: This is not legal advice; always consult an attorney if you have a legal issue 息 2015 Michael Crane Michael.Crane@CraneInfoLaw.com Concern # 1: Using the Name, Image or Likeness of Individuals What is it? State right of publicity laws protect against the unpermitted commercial use of an individuals name, image or likeness. CAUTION!: Be careful using the name or picture of any person (especially celebrities) in any communication that could be considered commercial, including ads (of course) and social media. How to Avoid Trouble? Get permission! For celebrities, this typically requires a detailed endorsement agreement. For consumers, a simple release or use of clear terms & conditions may be sufficient. Typical Pitfalls: Assuming your use isnt commercial or that it wont be objected to; using non-standard method to obtain permission, such as relying upon a posted sign. Another risk is imitating a celebritys identity, likeness or characteristics. Concern # 2: Using Trademarks of Other Companies What is it? Federal and state laws protect brand names (McDonalds), slogans (Just Do It), logos and other source indicators . CAUTION!: Be careful using the trademarks of others in any communication that could be considered commercial, including ads (of course) and social media. How to Avoid Trouble? Dont use trademarks of others without permission. There are limited uses that may be acceptable, known as nominative uses, including using the trademarks of others for comparative advertising (Our product outperforms Company Xs) or to show compatibility (Our app works on iOS and Android), but always check with your legal or compliance department prior to using someone elses trademark without permission.. Typical Pitfalls: If you have permission, you may still encounter trouble if you use the other companys trademarks outside of the scope of the agreement. If you dont have permission, you may encounter trouble: (1) using more of the other companys trademarks than necessary to ID them (never use more than you need to; be especially careful using logos and slogans), (2) implying affiliation or sponsorship with the other company, or (3) otherwise misrepresenting something in the communication. LOGO 5 L e g a l C o n c e r n s f o r C o m m u n i c a t i o n s P r o f e s s i o n a l s
Disclaimer: This is not legal advice; always consult an attorney if you have a legal issue Concern # 3: Using Copyrighted Material What is it? Federal law protects against the copying and distribution for literary, musical, dramatic, pictorial, graphic, sculptural, motion pictures and a/v works, sound recordings and certain other works. CAUTION!: Be careful using any materials that could be subject to copyright, including pictures, movie clips, TV, or other video, and music or other audio. Also be careful using artwork or copying printed materials. How to Avoid Trouble? While free royalty-free pictures and other materials are widely available, it can be difficult to determine the true owner and such sites generally dont indemnify/insure against charges of copyright infringement. Best practice is to only use pictures licensed from a reputable source. Keep in mind that license terms vary widely and that costs depend upon your use and scope and that popular music or clips of movie or TV shows can be prohibitively expensive. There are exceptions to copyright protection for fair use and materials in the public domain. It can be difficult, though, to accurately verify whether materials are within the public domain and determining the scope of fair use can be difficult (and it typically is found not to apply to commercial uses). Typical Pitfalls: Using free unlicensed materials from the Internet; licensing materials from questionable websites; using materials outside the scope of your license. Concern # 4: FTC Guidelines What is it? The Federal Trade Commission is a federal agency that has issued guidance covering commercial communications in a number of areas, including requiring the use of disclosures in social media (the .com disclosures) and disclosures necessary when bloggers talk about your products after being given something (the Endorsement Guidelines). CAUTION!: Not all social media (and other) channels work for every type of communication; if you need to make a required disclosure that is lengthy, for example, Twitter may not be a good choice. Also, make sure that if youve compensated and/or given anything of material value to a blogger or other person talking about your company and its products, that he/she clearly discloses the relationship with your company. Employees that blogs about your company should also disclose their association. How to Avoid Trouble? You should familiarize yourself with the FTC website and its guidance on communications. The FTC has rules that cover many common communication situations, such as disclosure requirements for when you ask consumers to post pictures in response to a contest or other inducement. Typical Pitfalls: There are numerous areas where companies can run afoul of FTC guidelines. Common trouble areas, however, include not disclosing important information to consumers clearly and conspicuously, and failing to require people communicating on your behalf to disclose their relationship with your company. Concern # 5: Everything Else! This list is only the beginning; there are numerous other potential legal concerns with commercial communications, including slander and libel, green claims, and industry- specific rules, such as those for the banking, brokerage, and pharmaceutical industries. To avoid problems, make sure that youre aware of and comply with all industry specific rules, avoid any communications that could be considered unfair or deceptive and and only make statements that you can support and substantiate. 5 L e g a l C o n c e r n s f o r C o m m u n i c a t i o n s P r o f e s s i o n a l s 息 2015 Michael Crane Michael.Crane@CraneInfoLaw.com For More Information www.uspto.gov/trademark www.copyright.gov www.ftc.gov/tips-advice/business- center/advertising-and-marketing

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5 Legal Concerns for Communications Professionals

  • 1. Disclaimer: This is not legal advice; always consult an attorney if you have a legal issue 息 2015 Michael Crane Michael.Crane@CraneInfoLaw.com Concern # 1: Using the Name, Image or Likeness of Individuals What is it? State right of publicity laws protect against the unpermitted commercial use of an individuals name, image or likeness. CAUTION!: Be careful using the name or picture of any person (especially celebrities) in any communication that could be considered commercial, including ads (of course) and social media. How to Avoid Trouble? Get permission! For celebrities, this typically requires a detailed endorsement agreement. For consumers, a simple release or use of clear terms & conditions may be sufficient. Typical Pitfalls: Assuming your use isnt commercial or that it wont be objected to; using non-standard method to obtain permission, such as relying upon a posted sign. Another risk is imitating a celebritys identity, likeness or characteristics. Concern # 2: Using Trademarks of Other Companies What is it? Federal and state laws protect brand names (McDonalds), slogans (Just Do It), logos and other source indicators . CAUTION!: Be careful using the trademarks of others in any communication that could be considered commercial, including ads (of course) and social media. How to Avoid Trouble? Dont use trademarks of others without permission. There are limited uses that may be acceptable, known as nominative uses, including using the trademarks of others for comparative advertising (Our product outperforms Company Xs) or to show compatibility (Our app works on iOS and Android), but always check with your legal or compliance department prior to using someone elses trademark without permission.. Typical Pitfalls: If you have permission, you may still encounter trouble if you use the other companys trademarks outside of the scope of the agreement. If you dont have permission, you may encounter trouble: (1) using more of the other companys trademarks than necessary to ID them (never use more than you need to; be especially careful using logos and slogans), (2) implying affiliation or sponsorship with the other company, or (3) otherwise misrepresenting something in the communication. LOGO 5 L e g a l C o n c e r n s f o r C o m m u n i c a t i o n s P r o f e s s i o n a l s
  • 2. Disclaimer: This is not legal advice; always consult an attorney if you have a legal issue Concern # 3: Using Copyrighted Material What is it? Federal law protects against the copying and distribution for literary, musical, dramatic, pictorial, graphic, sculptural, motion pictures and a/v works, sound recordings and certain other works. CAUTION!: Be careful using any materials that could be subject to copyright, including pictures, movie clips, TV, or other video, and music or other audio. Also be careful using artwork or copying printed materials. How to Avoid Trouble? While free royalty-free pictures and other materials are widely available, it can be difficult to determine the true owner and such sites generally dont indemnify/insure against charges of copyright infringement. Best practice is to only use pictures licensed from a reputable source. Keep in mind that license terms vary widely and that costs depend upon your use and scope and that popular music or clips of movie or TV shows can be prohibitively expensive. There are exceptions to copyright protection for fair use and materials in the public domain. It can be difficult, though, to accurately verify whether materials are within the public domain and determining the scope of fair use can be difficult (and it typically is found not to apply to commercial uses). Typical Pitfalls: Using free unlicensed materials from the Internet; licensing materials from questionable websites; using materials outside the scope of your license. Concern # 4: FTC Guidelines What is it? The Federal Trade Commission is a federal agency that has issued guidance covering commercial communications in a number of areas, including requiring the use of disclosures in social media (the .com disclosures) and disclosures necessary when bloggers talk about your products after being given something (the Endorsement Guidelines). CAUTION!: Not all social media (and other) channels work for every type of communication; if you need to make a required disclosure that is lengthy, for example, Twitter may not be a good choice. Also, make sure that if youve compensated and/or given anything of material value to a blogger or other person talking about your company and its products, that he/she clearly discloses the relationship with your company. Employees that blogs about your company should also disclose their association. How to Avoid Trouble? You should familiarize yourself with the FTC website and its guidance on communications. The FTC has rules that cover many common communication situations, such as disclosure requirements for when you ask consumers to post pictures in response to a contest or other inducement. Typical Pitfalls: There are numerous areas where companies can run afoul of FTC guidelines. Common trouble areas, however, include not disclosing important information to consumers clearly and conspicuously, and failing to require people communicating on your behalf to disclose their relationship with your company. Concern # 5: Everything Else! This list is only the beginning; there are numerous other potential legal concerns with commercial communications, including slander and libel, green claims, and industry- specific rules, such as those for the banking, brokerage, and pharmaceutical industries. To avoid problems, make sure that youre aware of and comply with all industry specific rules, avoid any communications that could be considered unfair or deceptive and and only make statements that you can support and substantiate. 5 L e g a l C o n c e r n s f o r C o m m u n i c a t i o n s P r o f e s s i o n a l s 息 2015 Michael Crane Michael.Crane@CraneInfoLaw.com For More Information www.uspto.gov/trademark www.copyright.gov www.ftc.gov/tips-advice/business- center/advertising-and-marketing